Electoral process for appointing staff representatives

21 Sep 2018

Special Newsflash

Dorothée David

The Grand Ducal Regulation (gdr) of 11 September 2018 regarding the electoral process for appointing staff delegation (hereinafter referred to as “the GDR”) was published in Mémorial A no. 838 of 18 September 2018. The GDR, which revokes the gdr of 21 September 1979, came into effect on 22 September 2018. Its provisions shall apply for the next social elections. The main changes are:

Organisation of the ballot 

The GDR stipulates that, when staff delegations are renewed in full between 1 February and 31 March every 5 calendar years, the ITM (Labour Inspectorate) sends the companies affected a letter by registered post at least 2 months before the date of the elections, with an identification code, which they can use to access the secure government-run interactive platform for appointing staff delegations  (hereinafter referred to as “the electronic platform”). The identification code is sent to companies within 15 days of their request when the staff delegations are organised outside the period mentioned above.

Drawing up electoral lists and public notices 

There is no longer any distinction made between electoral lists of blue collar workers, white collar workers and young workers. For each ballot, the employer will draw up an alphabetic list of the employees who fulfil the conditions for active and passive votes.

In terms of the information that has to be provided in a public notice to employees at least 1 month before the elections, the GDR specifies that the number of employees taken into account to calculate the number of staff employed in the company must now be included in the public notice, and specified in accordance with the provisions of article L. 411-1 of the Labour Code.

No later than the day on which the electoral lists are submitted by the employer to the ITM, the employer must display a public notice for employees explaining that any complaint made against the lists submitted must be presented not only to the employer but also for information to the ITM, within 3 working days of submission. The employer must also now send to the ITM the public notice produced 1 month before the elections and the public notice regarding complaints on the day the lists are submitted, via the electronic platform.

Presenting the candidates 

Lists of candidates and candidatures presented by union organisations justifying representation in a particularly important sector of the economy are now admissible, in accordance with article L. 161-6 of the Labour Code.

Furthermore, each list presented by a union organisation justifying general national representation or representation in a particularly important sector of the economy, may name one observer per polling station when it is submitted, who will be able to attend the electoral process to make sure it is conducted properly.

Composition and publication of candidate lists

The GDR specifically stipulates that the employer can publicise the lists of candidates electronically.

It is also stipulated that at least 4 working days before the elections, the employer must now register valid candidatures and provide the surname, first name, profession, national security number, nationality and gender of the candidates on the electronic platform. On the day on which the candidatures are registered, the ITM will send the employer, via the electronic platform, a notice detailed the information about the lists of valid candidates and the instructions for voters, which the employer can then put on public display.

If there are postal votes, it is now specified that valid candidatures must be displayed for the 10 calendar days before the ballot.

Constitution of polling stations

The GDR stipulates that on the day of the ballot, one main polling station and, if applicable, additional polling stations, each one with a chairman (the employer or its delegate for the main polling station/its representative for the additional polling stations) and two assessors, must be set up in the Grand Duchy of Luxembourg. The polling station or stations must be fully manned for the duration of the election process.

Ballot procedure and postal votes

The GDR specifies the terms and conditions for postal votes, as authorised by article L. 413-1 (5) of the Labour Code. In particular, no later than the 10th day before the election, the employer must supply employees who are absent from the company on the day of the ballot for reasons inherent to the way work is organised within the company, or due to illness, a workplace accident, maternity or leave, with ballot papers along with instructions for the elections, sent by registered post.

Furthermore, the GDR specifies that the ballot boxes must comply with a model approved by the ITM.

Common provisions 

The GDR specifies that a report of the electoral process and the vote results is drawn up by the main polling station and, if applicable, by the additional polling stations. This report is signed immediately by the chairman and the assessor, and must contain the information listed in article 32 (4) of the GDR. A copy of the report must now be passed on to any union that presented a list.

The chairman of the main polling station must then do the following:

  • register the results of the ballot on the electronic platform, including the information mentioned in article 32 (4) of the GDR contained in the report from the main polling station and, if applicable, in the reports from the additional polling stations;
  • draw up, via the electronic platform, a general census report on the election process and the results of the vote, including the information mentioned in article 32 (4) of the GDR,;
  • publish the results of the ballot via the electronic platform, as well as the reports mentioned above, on the day of the elections.

During the 3 days following the vote, the surnames and first names of unelected candidates, as well as the number of votes obtained, must now also be displayed in the company, as well as the surnames and first names of the representatives and deputies actually elected.

The GDR specifies that these provisions also apply for automatic elections when the number of candidatures does not exceed the number of representatives to be elected, and the candidates agree on the appointments.

The surnames and first names of representatives automatically elected by a decree issued by the Minister for Labour if candidatures are not presented must also be displayed for the 3 days following notice of the decree.